His Worship Emmanuel J. Samaila, Esq, judge of the Upper Customary Court of Kaduna State has held that the demand for refund of bride price in a divorce proceeding is repugnant to natural justice.
While delivering judgment in a divorce proceedings between Ruth Reuben (Petitioner) and Reuben Ibrahim (Respondent) the Judge gave the following reasons:
- Can it be said that a custom requiring a woman to refund the token paid as her bride price, because she decided to divorce her husband, is not repugnant to natural justice when she is not an inanimate piece of property or an animal bereft of freewill acquired by him?
- Is it fair and in accord with the principles of natural justice to require a woman to refund the token paid as her bride price and return alone and empty-handed to her parents‟ house after investing her life in matrimony she must have desired to last forever? Is it equitable to make and enforce such an order against a woman married under customary law, as in the instant case, when such is not a requirement for either an interim or final decree dissolving a marriage contracted under the Marriage Act?
- Will it be conscionable to blindly and slavishly give effect to and make such an order against the petitioner just because it is the custom of the Kagoma people as canvassed by the respondent? Is it conscionable that a woman married under the Marriage Act gets alimony and enjoys the just and equitable right to settlement of property and maintenance but her sister married under customary law gets nothing when she chooses to leave and is even required to refund to her man the token he paid as her bride price? Is it conscionable that a woman who was physically and psychologically battered and bruised in the course of discharging her numerous matrimonial responsibilities for eight (8) years, including taking care of their child and the respondent, especially when he becomes sick, should be ordered to refund her bride price for seeking to leave a broken union? How will the application of this custom encourage and inspire women married under customary law to be committed to their marriages to the point of returning to their husbands‟ houses, as the petitioner did severally in the instant case, even after being maltreated, bruised and battered?
- Isn‟t this customary practice manifestly discriminatory against the petitioner and breaches several of her constitutionally guaranteed rights, particularly the right to dignity of person as provided for in Section 34(1)(a) & (b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)? Doesn‟t this practice give more credence to the fact that women married under customary law are considered and treated as mere properties acquired by the man in whose favour exists a reserved and an unqualified right to the refund of the token he paid as bride price if at any time during her lifetime the woman dares to quit the matrimony, even after eight (8) years of complete obeisance to the respondent as in the instant case?
- A woman married under customary law is not a mistress, a surrogate mother or an inanimate baby-making machine available for use by a man for the production of children. She is in a lawful marital union with inalienable rights, first as a human being and also as a spouse. She enjoys the protection of the law, particularly our nation‟s grundnorm, the 1999 Constitution, and is not less human than her counterparts married under the Marriage Act.
- Should customary law be allowed to be used as a legal cover for the abuse of the fundamental rights of women who choose to marry under it? Is this something that our Constitution envisaged when it recognized customary law as one of our sources of law? At some point in our national life, oppressive and discriminatory customary practices have to be brought to an end. One of the paths to achieving this is by the pronouncements of Courts declaring such practices as repugnant.
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